December 12, 2009
Crime and punishment debated in race for Illinois governorThis local article, which is headlined "IL governor hopefuls weigh in on crime, punishment," details that usual debates and common divides concerning crime and punishment are in play in Illinois as candidates jockey to take over the state's top spot. Here are excerpts from the article:
When it comes to punishing people for their crimes, there's little agreement among the candidates for Illinois governor. Some want to resume executions, while others support the state's decade-old moratorium on the death penalty. Some think it's smart to save money by releasing nonviolent inmates from the state's overcrowded prisons; others see that as a threat to public safety.
The two major Democrats, Gov. Pat Quinn and Comptroller Dan Hynes say they support the death penalty but would maintain the moratorium that Republican Gov. George Ryan began in 2000 over concerns about innocent people being put to death, according to their answers on an Associated Press candidate questionnaire. "It is not conscionable that an innocent person could be put to death in Illinois," Quinn said. Neither offered details about what additional safeguards are needed.
Most of the seven Republican candidates favor lifting the moratorium, though some would want more safeguards in place first. One wants the death penalty abolished....
Candidates for governor also differ on letting nonviolent offenders out of prison early to ease the state's growing budget problems.
Quinn defended his administration's plan to release about 1,000 inmates up to a year early to save about $5 million, saying they would be electronically monitored and weren't in prison for crimes against people. Whitney backs Quinn's plan and said legalizing marijuana and decriminalizing possession of some other narcotics could help reduce jail overcrowding.
But nearly all the Republicans assailed early release, as did the Democratic Hynes, who called it "another example of a piecemeal budgeting" that doesn't consider the "safety and best interests of Illinois communities."
Brady said it's too risky, Ryan called it "inappropriate," and McKenna doesn't like it either. "I am especially troubled that this decision is driven by budget concerns, not public safety priorities," McKenna said.... "Public safety is one of the top priorities of government and not the place to cut spending," Schillerstrom said.
But Proft said he is open to early release programs as long as there are support services available for those the former inmates. He also said the state needs to look at ways to deal with nonviolent drug offenders. Walls said the state should reassign 15,000 nonviolent inmates to community-based programs where they can get counseling and skills training.
Eight years in state prison for failure to register as a sex offenderThis local story from Ohio, headlined "Sex offender gets 8 years for not registering," reports on the longest prison terms I can recall seeing for merely failing to register as a sex offender. The story provides only these sketchy details:
A 41-year-old Akron man was sentenced to eight years in prison late Thursday after being found guilty of failing to register as a sex offender. Summit County Common Pleas Judge Lynne Callahan found Clifford Godfrey guilty of failing to register as a sex offender and failing to register a change of address.
The Summit County Prosecutor's office said Godfrey was released from prison on May 14 after serving a term for corruption of a minor. Upon release, he registered the address where he would be living with the department of corrections.
Under Ohio law, a sex offender must also register his address with the Sheriff's department office. Prosecutors said he did not do this. A certified letter was sent to the address he provided the department of corrections, but the letter was returned because Godfrey did not live there, prosecutors said.
Godfrey was arrested and sent to Oriana House, but prosecutors said he left there as well. He was arrested a second time for not registering a change of address.
I suspect there may have been some additional aggravating factors involved in this case that might explain why such a long sentence was imposed for just the failure to register. But I am also wondering whether the recently discovered crimes of long-registered sex offenders Phillip Garrido and Anthony Sowell may be influencing sentencing judges to go even tougher on sex offenders who do not keep up on their registration requirements.
Can downloading of child porn be blamed on post-traumatic stress disorder?This local story from Virginia, which is headlined "Navy officer gets 40 months for child porn," reflects recent debates over both the federal child porn sentencing guidelines and showing leniency for those who served our country in the military. Here are the details:
A Navy lieutenant commander who served in Iraq with an elite Riverine unit was sentenced today to 40 months in prison after admitting he downloaded child pornography. John J. Hall blamed his actions in part on post traumatic stress disorder, a claim that the judge in the case took into account in granting leniency.
The U.S. Attorney’s Office asked for a 70-month prison term, but U.S. District Judge Mark S. Davis cited Hall unblemished record and achievements in uniform in sentencing Hall to well below federal recommended guidelines.
Hall pleaded guilty in July to one count of possessing child pornography. He admitted that he downloaded child pornography in the fall of 2006 and then again upon his return from Iraq in 2007. Authorities discovered 288 child porn images on his computer. Hall has just shy of 20 years of service.
Some recent related posts:
- "Judge suggests more sentencing options for war veterans"
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- Should prior military service reduce a sentence?
- ABA Journal covers the controversies over federal child porn sentences
- Potent DOJ response to ABA Journal article about federal child porn sentencing
- Potent response to DOJ account of federal child porn sentencing
- Strong sentencing opinion noting disparities in federal child porn downloading cases
- "Federal judges argue for reduced sentences for child-porn convicts"
- Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
December 11, 2009
Death penalty debate taking center stage in (in)famous Casey Anthony caseThis new CNN story, which is headlined "Casey Anthony's lawyer argues against death penalty for client," reports on the notable sentencing issue taking center stage in a high-profile Florida murder case. Here are excerpts:
A year after the remains of a Florida toddler were discovered, a lawyer for the slain child's mother asked a judge Friday to stop prosecutors from seeking the death penalty against her.
Lawyer Andrea Lyon told Orange County Circuit Court Judge Stan Strickland that the "real reason" prosecutors are seeking the death penalty against Casey Anthony is because they want to "get as biased a jury as they possibly can." Lyon said a jury that is qualified to serve in a death penalty case is more likely to convict defendants.
But prosecutor Jeff Ashton told the court that the state is not seeking the death penalty; rather, the jury and judge will decide whether it is appropriate. Anthony has pleaded not guilty to murder in the death of her 2-year-old daughter, Caylee....
Ashton said the death penalty question is not for the prosecution to answer. "Everyone who is indicted by a grand jury in the state of Florida for the crime of first-degree murder is eligible for the death penalty," he said. "The decision by the prosecutor is simply, should a jury, and ultimately, a judge, be allowed to make this decision?"
Further explaining why he believed the case was eligible for the death penalty, Ashton speculated what jurors might infer from the facts presented to them. He suggested that Caylee's killer may have either given the toddler a substance to knock her unconscious before applying duct tape to her mouth and nose, or had physically restrained her before doing so....
In her argument, the defense attorney noted the toddler's undetermined manner of death, saying that the death penalty infringes on Anthony's constitutional rights. "They cannot be seeking the death penalty in good faith because there is insufficient evidence ... to establish first-degree murder," she argued.
More interesting details on the Vrdolyak appeal in the Seventh CircuitI noted here yesterday the tough questions being asked by panel of the Seventh Circuit might concerning a lenient political corruption sentence. This new piece in The National Law Journal, which is headlined "Judge Posner Knocks Trial Judge's Judgment in Vrdolyak Appeal," provides more interesting details:
The full oral argument is worth listening to, and it is available at this link. There is one period of questioning by Judge Posner that reveal his limited understanding of usual sentencing procedures, and I think it is Judge Hamilton who jumps in to clarify matters. Whether and how these issues will find expression in the panel ultimate opinion remains to be seen, but this is a case that is definitely worth watching.
Judge Richard Posner of the 7th Circuit is not someone whom lower court judges want denigrating their rulings. But that's what the oft-cited judge did Thursday to Senior U.S. District Judge Milton Shadur.
The 7th U.S. Circuit Court of Appeals heard oral arguments on Wednesday in prosecutors' appeal of a sentence handed down to longtime (now retired) Chicago alderman Edward R. Vrdolyak. Shadur had sentenced Vrdolyak to five-years probation and a $50,000 fine for his role in an illegal kickback scheme. But the U.S. Attorney's Office in Chicago wanted the maximum 41 months jail time....
"I'm concerned also about a situation where the judge finds no loss -- on rather questionable reasoning -- and says, 'Well, if I'm wrong and there's a loss, it doesn't make any difference,' " Posner said. "Does that reflect a thoughtful sentencing process or just a determination to give a certain sentence regardless?"...
On the letters, Posner said it was "ridiculous" to give them so much weight. "I don't get the letters," Posner said. "Anyone who is prominent can gin up a lot of letters."
Newly seated Judge David Hamilton, who presided in the Southern District of Indiana before being confirmed by the U.S. Senate in November, asked if the sentence was "unreasonable" and wondered what good a remand would do, given the trial judge's flexibility in sentencing.
Posner predicted that Shadur, who took senior status in 1992, wouldn't change his mind. While the government didn't ask for a remand to a different judge, the appeals court can call for one.
"Judge suggests more sentencing options for war veterans"The title of this post is the headline of this new article in the Denver Post. Here is how it starts:
John K. Brownfield Jr. returned from tours of duty in Iraq and Afghanistan abusing alcohol and suffering from mood swings, anxiety, depression and insomnia. "He was exposed to children being blown to pieces by explosive devices," said his lawyer, Vaughn McClain. "His job was to go pick up body parts."
Brownfield broke down in U.S. Senior District Judge John L. Kane's courtroom recently as he testified about the turmoil in his life during a hearing about his federal criminal court case.
Brownfield pleaded guilty to bribery of a public official in a case stemming from accusations that during his tenure as a correctional officer at the U.S. Penitentiary in Florence, which began in 2007, two years after his military service, he smuggled tobacco products to at least seven inmates in exchange for $3,500 in bribes. He faces as much as a year and a day in prison for the crime, court records show.
Kane, who has not issued a sentence in Brownfield's case, in October testified before the U.S. Sentencing Commission, saying he would like to see alternative sentencing options for military veterans. "I presently have cases involving veterans, and I have to ask myself, is this the way we treat our heroes?" Kane said.
This piece does not mention the recent Supreme Court ruling in Porter, but it would seem to give Judge Kane's concerns even more heft.
Some old and new related posts:
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- Should prior military service reduce a sentence?
- Lovely Rita, SCOTUS case...
- Why isn't there a prior good works guideline?
Would elimination of elected judges be beneficial for criminal law and sentencing jurisprudence?The question in the title of this post is prompted by this new piece in The National Law Journal, which is headlined "O'Connor Helps Launch New Initiative Against Judicial Elections." Here are excerpts from the piece:
Since retiring from the high bench, former U.S. Supreme Court Justice Sandra Day O'Connor has repeatedly advocated against the use of elections to pick state judges. Now she is teaming with a center at the University of Denver to try to add some political teeth to her efforts.
On Thursday, the Institute for the Advancement of the American Legal System announced the creation of the O'Connor Judicial Selection Initiative, a project that will assist state level efforts to move away from judicial elections.
The institute, founded in 2006 by former Colorado Supreme Court Justice Rebecca Love Kourlis, will devote a full-time director to the project, backed by the institute's 10-person staff. The judicial selection initiative will also be aided by an 11-member advisory commission, which O'Connor will chair.
O'Connor said the initiative would provide "information and useful support" to states considering a move away from judicial elections. "No other nation in the world elects their judges in popular elections," O'Connor said. "We are alone in that regard."
Calling the initiative a "think-do tank," Kourlis said the initiative was about moving beyond public education efforts. "This is all about, OK, in this particular state, what do we need to do to build a majority," said Kourlis, who is executive director of the institute.
Because I have a bit of a Jacksonian streak in me, I tend not to be quick to assail elected judges. But I know many folks in the state defense bar point to elected judiciaries as a source of great mischief for the development of criminal justice jurisprudence. And I suspect that state prosecutors might be among those most eager to see judicial elections retained. Thus, I would like to hear what commentors think about Justice O'Connor campaign to get rid of judicial campaigns.
"A gun case or Pandora's box?: Ruling could trigger the unhinging of American culture"The title of this post is the headline of this amusing commentary in The Washington Times, which makes for a good topic for conversation on a Friday. Here is how the commentary starts and ends:
Many have heard about the historic gun rights case going to the Supreme Court. Fewer have heard that this is also a major case for businesses and family values. It could lead to anything from court-ordered Obamacare to same-sex marriage. This is the biggest case of the year, and everyone has a stake in it....
If the court overrules the Slaughterhouse Cases, the Privileges or Immunities Clause can mean anything courts say it means. The Supreme Court could declare a constitutional right to government-provided health care or "decent" housing, a free college education, a "living wage" or a clean environment, resulting in a court-ordered cap-and-trade system.
It also could completely change American culture, with the court having a new basis upon which to declare constitutional rights to abortion, same-sex marriage, obscene material or a child's "right" to a public-school education over his parents' objections. It's because of these social issues, in particular, that the Family Research Council has weighed in on this case.
Although it should be about the Second Amendment, this gun rights case is, instead, a Trojan horse for everything except guns. It could remake America's economy and culture. That's why several conservative groups have weighed in with a brief asking the court to incorporate the Second Amendment through the Privileges or Immunities Clause but to do so without overruling the Slaughterhouse Cases.
McDonald v. Chicago is as big as it gets. All eyes will be on the Supreme Court early next year.
A few related new and old Second Amendment posts:
- Should criminal justice reform groups actively urge SCOTUS to overrule The Slaughterhouse Cases?
- Seeking help working though the Second Amendment amicus briefs filed in McDonald
- What is the best argument that Heller should only impact the feds? Will it get any votes?
- What state and local issues will be litigated the most if (when?) Heller is incorporated?
- State AGs and the Second Amendment incorporation debate
- Should (and will) SCOTUS discuss standards of review for the Second Amendment when deciding incorporation?
- "In U.S., Record-Low Support for Stricter Gun Laws"
- What if no lower court judges participate in a "Second Amendment Revolution"?
- Has there been a single pro-gun-rights rulings in lower courts since Heller?
- "Does the Second Amendment Bind the States?"
- What might 2009 have in store for . . . Second Amendment jurisprudence?
New Jersey getting closer to repealing its school-zone mandatory minimumsThis local article, which is headlined "Repeal of mandatory minimums in drug cases clears N.J. Senate," provides the latest update on legislative efforts in New Jersey to repeal certain mandatory minimum sentencing provisions. Here are some of the details:
The state Senate voted today to roll back mandatory minimum sentences for some drug offenses in school zones, a victory for supporters seeking treatment rather than jail time for nonviolent drug offenders. New Jersey has not loosened any mandatory minimum sentences in at least two decades, experts who studied the laws said.
"It’s going to save money, it’s going to save lives and it’s going to protect the public," said Sen. Raymond Lesniak (D-Union), the bill’s primary sponsor. "It’s not too often you get that combination." Since 1987, the state has imposed mandatory prison terms of one to three years for people caught dealing drugs within 1,000 feet of a school. Under the proposal approved by the Senate today, judges could reduce the required minimum sentence or impose probation, depending on whether the offense occurred when school was in session, its proximity to school grounds, and if children were present. Sentences could not be reduced if the offense took place on school grounds or if it involved violence or a gun.
Opponents of the bill said it would signal New Jersey is going soft on crime. Sen. Joseph Pennacchio (R-Morris) said it would allow criminals to "peddle their poison" to children. "It’s up to us to make these laws harsher," he said.
The bill’s supporters say mandatory minimums have not protected children and disproportionately punish minorities. New Jersey’s Commission to Review Criminal Sentencing reported that 96 percent of people incarcerated for violations in drug-free school zones are black or Hispanic.
Bennett Barlyn, who was the executive director of the commission, said the proposed law is good for the state. "It demonstrates a new approach by the Legislature in dealing with crime in a more nuanced way," he said. "It more appropriately tailors the punishment to the nature of the offense."
December 10, 2009
New study suggesting Texas executions might lower homicide ratesThanks to this post at C&C, I saw this piece from USA Today reporting on this notable new study appearing in Criminology. Here is how the USA Today piece captures the research:
Executions in Texas slightly lower homicide rates there, about five to 10 killings in the year afterwards, suggest criminologists. The executions also may displace homicides to nearby states, however....
In the study, the team looked at Texas, where about one-third of all executions have occurred nationwide since 1973, and where past researchers have disagreed on deterrent effects. Because legal decision led to greatly-increased executions in 1994, the researchers looked at cases starting with that year.
"We conclude that evidence exists of modest, short-term reductions in the numbers of homicides in Texas in the months of or after executions," the study concludes. Based on statistics, about 2.5 fewer murders than would have otherwise took place in Texas in the one to four months after an execution, where the state had 8,511 murders in 2005, according to the FBI. But the analysis statistics suggest the executions also displaced murders to later months and to other states, lowering the deterrent effect of each execution to 0.5 fewer murders in the next year.
This new piece looks like a must-read for any and everyone seriously interested in arguments about whether the death penalty may save lives.
Seventh Circuit questions probation sentence for political fraudAs detailed in this local report, which is headlined "Appeals judge rips Vrdolyak sentence: Posner says probation ‘depreciates the significance of the crime’," it sounds like a panel of the Seventh Circuit might be on the verge for finding a lenient sentence substantively unreasonable. Here are the details:
An appellate judge ripped into the probation sentence of former Chicago Ald. Ed Vrdolyak at a hearing today, saying it “depreciates the significance of the crime.” Appeals Judge Richard Posner extensively questioned why Vrdolyak got no prison time even though he pleaded guilty to fraud involving the sale of a Gold Coast medical school building.
When he sentenced Vrdolyak, U.S. District Judge Milton Shadur said he gave the 71-year-old probation in part because of an overwhelming number of letters the judge had received offering character references, including one from Bears linebacker Brian Urlacher. “A sentence like that really depreciates the significance of the crime,” Posner said in court today. “It just makes the crime seem trivial.”
The comments came during arguments before the Seventh U.S. Circuit Court of Appeals. Assistant U.S. Attorney Christopher Niewoehner, who initially asked that Vrdolyak receive up to 41 months in prison, appealed the sentence. In court today, Niewoehner asked the appeals judges to send the case back to Shadur for resentencing....
Vrdolyak pleaded guilty to charges stemming from the $15 million sale of a Gold Coast building belonging to the former Chicago Medical School, now called the Rosalind Franklin University of Medicine and Science.
Vrdolyak schemed with school board member Levine to split a $1.5 million kickback from the sale of the building to Smithfield Properties Development. Levine became a cooperating witness in the government's probe of the deal and wore a wire on Vrdolyak. The sale went through, but the kickback never happened once Levine’s cooperation became public.
"Senators Express Foolish Belief That All Problem Have Criminal Justice Solution"The title of this post is my alternative headline for this new article in The National Law Journal, which is actually headlined "Senators Express Impatience With Scope of Fraud Prosecutions." Here is how it begins:
The federal government's highest-ranking officials for investigating financial fraud defended their work Wednesday, under questioning from U.S. senators who want them to do more about those who might have contributed to the credit crisis and the recession.
Senators of both parties expressed concern that some fraud continues to go unpunished, and Democrats wondered why more corporate executives and directors haven't been charged. "Why haven't we seen more boardroom cases?" asked Sen. Ted Kaufman, D-Del., who was chairing a hearing of the Senate Judiciary Committee.
Assistant Attorney General Lanny Breuer, head of the U.S. Justice Department's Criminal Division, replied that prosecutors need time to build them. The alleged crimes, he said, "took a long time in developing and hatching, and investigating them will take a long time, but they will be brought."
Breuer, testifying one month after a Brooklyn, N.Y., jury acquitted two former Bear Stearns hedge fund managers of fraud, said the case would not deter the Justice Department. "It shows, of course, these are tough cases, but we're going to continue to bring them," said Breuer, a former partner at Covington & Burling in Washington....
None of the officials said his agency needs more resources. In May, President Barack Obama signed legislation appropriating $330 million over two years to the Justice Department, largely for financial fraud. The SEC received $40 million over two years.
The officials were also reticent about supporting other changes in federal law. Sen. Orrin Hatch, R-Utah, said he thinks some traders are abusing the rules for short-selling stock, but Khuzami, former general counsel for the Americas at Deutsche Bank, would say only that the SEC is studying the issue. Sen. Al Franken, D-Minn., wondered why there hadn't been prosecutions of ratings agencies that have been accused of improperly valuing securities; Breuer and Khuzami said there are multiple challenges to such cases, including the agencies' claims of First Amendment protection.
This story provides, in my view, a window into many problems with how legislatures respond to societal challenges. Rather than seriously seej to confront structural and systemic issues that contribute to social problems, legislature are often quick to look to attributed problems to a few bad apples and are eager to call for bad apples to subject to harsh criminal justice sanctions. Though there certainly are bad apples out there (see, e.g., Bernie Madoff), the criminal justice system can often only deal with the worst symptoms of a broader societal disease.
Another thoughtful and notable district court opinion on restitution in child porn sentencingA helpful reader sent me a copy of a new opinion from the Eastern District of Texas addressing a request for restitution in a child porn downloading case. The opinion in US v. Paroline, No. 6:08-CR-61 (E.D. Tex. Dec. 7, 2009) (available for download below), denies restitution on a causation theory as explained in its conclusion:
[T]he Court finds that Amy was harmed as a result of Paroline’s conduct and thus, is a “victim” for purposes of section 2259. However, a restitution award under section 2259 requires that the Government prove by a preponderance of the evidence the amount of the victim’s losses proximately caused by the defendant’s conduct. Having considered the parties’ oral arguments and written submissions, the Government has not met its burden of proving what losses, if any, were proximately caused by Paroline’s possession of Amy’s two pornographic images and thus, the Request for Restitution is DENIED.
The body of the Paroline opinion includes this paragraph noting the disparate treatment that this interesting issue has been given in various district courts over the last few months:
Restitution orders entered in possession cases have varied among the various district courts addressing the issue. On July 9, 2009, a district court in the Northern District of Florida entered a restitution order against a possessor criminal defendant in favor of Amy in the amount of $3,263,758. United States v. Freeman, No. 3:08-cr-22 (N.D. Fla. filed July 9, 2009). Similarly, a district court in the Southern District of Florida ordered a possessor criminal defendant to pay $3,680,153 in restitution to Amy without addressing the proximate causation issue. United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *3–4 (S.D. Fla. Sept. 2, 2009). On the other hand, a district court in the Northern District of California declined to order restitution because restitution was precluded under the defendant’s plea agreement, but noted that “a restitution order in [an end-user possession] case must be based upon the identification of a specific injury to the victim that was caused by the specific conduct of the defendant.” United States v. Simon, 2009 WL 2424673, at *7 (N.D. Cal. August 7, 2009). The Central and Eastern Districts of California have taken a different approach, seemingly adopting a set amount of restitution per defendant convicted of possession of child pornography. See United States v. Brown, No. 2:08-cr-1435 (C.D. Cal. filed Oct. 5, 2009) (awarding restitution in the amount of $5,000 to each victim); United States v. Ferenci, No. 1:08-cr- 0414, 2009 WL 2579102, at *6 (E.D. Cal. Aug. 19, 2009) (awarding restitution in the amount of $3,000 to the victim). In another case, the Government and the defendant stipulated to the amount of restitution because it was “in the best interest of justice, judicial expedience[,] and economy in resolving this novel legal issue.” United States v. Granato, No. 2:08-cr-198 (D. Nev. filed August 28, 2009). Most recently, a district court in Maine declined to order restitution finding that the Government “failed to present sufficient evidence showing a particular loss proximately caused by the offense of conviction.” United States v. Berk, — F. Supp. 2d —, No. 08-CR-212-P-S, 2009 WL 3451085, at *8 (D. Me. October 29, 2009).
Interesting sign of the modern high-tech sentencing timesI came across this interesting and telling press release, titled "Leading Strategic Litigation Communication Firm Now Producing Pre-Sentencing Video Biography," when scanning the news this morning. Here are snippets:
Colton Creative, the national leader in strategic litigation communication, announces that the firm is now offering pre-sentencing biography production. Recognized as the leading producer of "day in the life" and "video settlement brochures" in the United States, Colton Creative President Andrew Colton says pre-sentencing mitigation videos is a logical product offering of his company.
"We've been asked several times by clients if we could apply the broadcast network news magazine style we use for our litigation videos to documentaries showing the good things that people facing jail or prison time have accomplished in their lives."...
Colton Creative's pre-sentencing videos are custom made and can run anywhere from a few minutes to half an hour -- following rules set by the specific Judge running the case in question. They feature interviews with family, friends, and provide an in-depth look at why incarceration is not appropriate.
I think it makes sense for me to file this post in my "white-collar sentencing" archive, as I doubt all that many defendants other than those involved in white-collar offenses are likely to have the resources to hire this firm.
December 9, 2009
Can one make a unique constitutional argument against a second execution attempt?This AP article, which is headlined "Judge: Ohio inmate's execution appeal has limits," reports on the federal hearing conducted today concerning Romell Broom's claim that Ohio should not get a chance to try again to execute him after its failed attempt in September:
An Ohio inmate fighting the state's second attempt to execute him will be limited to a simple argument, a federal judge said Wednesday: Does the state, having failed once, have the legal right to try again?
Beyond that, a recent court ruling likely limits how much condemned inmate Romell Broom could say about pain he might suffer, said U.S. District Court Judge Gregory Frost.
The 6th U.S. Circuit Court of Appeals ruled Monday that death row inmate Kenneth Biros hadn't presented evidence that the state's new backup execution method could cause severe pain in violation of the U.S. Constitution. Biros, 51, was executed Tuesday for killing a woman he met at a bar in 1991. He was the first person put to death in the country with a single drug in a lethal injection.
"We all agree that Mr. Broom suffered some pain from that attempted execution process," Frost said. "We all agree that the state of Ohio intends to proceed again on a second attempt." But Frost said he doesn't know what Broom's lawyers could present about Broom's experience that would overcome the 6th Circuit's ruling. Frost said the appeals court ruling appears to limit Broom to his argument over whether the state has the right to carry out a second execution attempt. Lawyers will submit written arguments and Frost will rule within several weeks....
Following Broom's execution try on Sept. 15, which Frost has called a "debacle," the state changed its execution methods to one intravenous drug with a backup method involving intramuscular injection.
Broom said he was stuck with needles at least 18 times, the pain so intense he cried and screamed out. His attorneys say it would constitute cruel and unusual punishment for the state to try again and would violate Broom's double jeopardy rights, punishing him twice for the same crime....
The only case similar to the botched Broom execution happened in Louisiana in 1946, when a first attempt to execute Willie Francis did not work. Francis was returned to death row for nearly a year while the U.S. Supreme Court considered whether a second electrocution would be unconstitutional. The court ultimately ruled 5-4 against Francis, and he was put to death in 1947.
I assume the Sixth Circuit ruling which Judge Frost is referencing is this 31-page opinion from the Sixth Circuitdated Monday that walks through and rejects all the claims made by Biros concerning Ohio's new one-drug lethal injection protocol. Though Judge Frost seems wise to recognize that this Sixth Circuit opinion would make it hard for Broom to attack Ohio's new execution method, I cannot help but wonder if there is perhaps a unique constitutional argument that Broom can make to try to preclude a second execution attempt. Of course, Willie Francis lost such an argument in the Supreme Court back in 1947, but constitutional doctrines have changed and the Eighth Amendment has evolved a lot over the last six decades.
UPDATE: This local article about the Broom hearing provides more information about the hearing, suggesting that Judge Frost is focused on the issue set out in the question in the title of this post and also that litigation on this issue will likely drag deep into 2010:
"It seems to me that all that's left is a legal argument as to whether the state can attempt to execute Mr. Broom twice," Frost told attorneys for the state and Broom, who was in court wearing an orange prison jumpsuit and shackles on his wrists and ankles. Broom's attorneys had suggested calling witnesses to testify about the suffering he endured in the first attempt, but Frost decided that written statements will be sufficient....
Broom's lawsuit argues that a second attempt to take his life would violate his Eighth Amendment protection against cruel and unusual punishment. Frost gave Broom's attorneys until Jan. 8 to file an amended complaint, which would be followed by the state's response. The judge could order a trial.
He extended a temporary restraining order that prevents the state from setting an execution date for Broom while the case is being considered. Timothy Sweeney, one of Broom's attorneys, predicted that the next round of legal motions could take as long as four months.
A reentry perspective on the latest official prisoner dataI received this morning a copy of this notable press release from the National Reentry Resource Center providing a reentry perspective on the latest official prison data. Here are excerpts:
The new statistics reveal that the total prison population growth rate (.8 percent) was the slowest in eight years; however, "the numbers of state and federal prisoners reached all-time yearend highs in 2008." BJS estimates that about 1 in every 198 U.S. residents was incarcerated in federal or state prison at the end of 2008.
Prisoners in 2008 reveals that the number of individuals released from federal and state prisons rose to 735,454 (an increase of 2 percent). The bulletin also reports that there was an 8 percent increase in the number of individuals released to the community without any conditions. These numbers underscore the need for reentry resources and technical assistance to state and local service providers.
Probation and Parole in the United States, 2008 provides useful information about the nearly 5.1 million adults under community supervision—about 1 in every 45 adults in the country. (The bulletin on prisoners indicates that although the number of parole violators admitted to state prison increased again in 2008, the rate of that increase was slower than in the previous two years.)
Both bulletins provide detailed appendixes with information about particular states, methodologies, and notes that describe how jurisdictions collect and report data.
Prisoners in 2008 (NCJ-228417), by William J. Sabol, Heather C. West, and Matthew Cooper, can be found here. Probation and Parole in the United States, 2008 (NCJ-228230), by Lauren E. Glaze and Thomas P. Bonczar, can be downloaded here.
Huge en banc ruling from Ninth Circuit reversing death sentence for ineffective assistanceI can only imaging what Kent Scheidegger at Crime & Consequences will think about today's en banc ruling from the Ninth Circuit in Pinholster v. Ayers, No. 03-99003 (9th Cir. Dec. 9, 2009) (available here). Here is how the majority opinion starts:
Scott Lynn Pinholster (Pinholster) was sentenced to death after a jury convicted him of double murder with a knife in the course of a home robbery and burglary. After exhausting his state remedies, Pinholster sought a writ of habeas corpus in federal district court in which he alleged, among other claims, ineffective assistance of counsel at both the guilt and penalty phases of his trial. Applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, in its final ruling, the district court upheld Pinholster’s conviction, but granted habeas relief on his death sentence because the court found that trial counsel’s deficient performance at the penalty phase of the trial unconstitutionally prejudiced Pinholster’s defense.
A three-judge panel of this court affirmed the district court’s guilt phase determination but reversed its grant of habeas relief on the penalty phase. Pinholster v. Ayers (Pinholster II), 525 F.3d 742 (9th Cir. 2008). Sitting en banc, we affirm the district court. Although the denial of Pinholster’s guilt phase ineffective assistance claim was appropriate, his penalty phase ineffective assistance claim warrants habeas relief even when considered under AEDPA’s deferential standards.
The majority then takes 50+ pages to explain its ruling. In response, Chief Judge Kozinski writes nearly 75 pages of a dissent explaining why he thinks the majority is wrong. Here is how that opinion concludes:
The trial in this case took place over a quarter century ago. Pinholster’s lawyers are both dead. Justice Mosk, who wrote the California Supreme Court’s unanimous opinion in Pinholster’s direct appeal and participated in both of his habeas petitions, is also dead. Pinholster’s two victims are long dead and forgotten; whatever hopes and aspirations they may have had were cut short because they had the misfortune of getting in the way of Pinholster’s greed and anger.
Meanwhile, prison has been good to Pinholster. He sits in his cell reading Machiavelli, Voltaire “and all the philosophers”, drawing pictures to sell over the internet. He enjoys the gravitas, authority and mentoring opportunities that come with being an elder in his prison gang, and has surgery performed on his knees at taxpayer expense. He still stabs people whenever he can, without passion or regret; “it was just business,” he explains. His conscience doesn’t trouble him about the fact that he took the lives of two fellow human beings; he has never expressed the least remorse for his killings. The people of California are entitled to put an end to Pinholster’s paid vacation and insist that the punishment lawfully imposed on him be carried out.
I have no doubt that my colleagues sincerely believe they are following the Supreme Court’s directions. Admittedly, the Court has been less than clear in this area. See, e.g., Rompilla, 545 U.S. at 377 (majority), 395 (Kennedy, J., dissenting); Wiggins, 539 U.S. at 514 (majority), 538 (Scalia, J., dissenting); Terry Williams, 529 U.S. at 367 (majority), 416-17 (Rehnquist, J., dissenting). But I believe it’s been clear enough, and Pinholster’s death sentence must be reinstated. If we do not do it ourselves, it will surely be done for us.
"New execution method unlikely to gain traction in California"The title of this post is the headline of this notable (and disappointing) article in today's Los Angeles Times. Here is how it starts:
An Ohio murderer put to death with the nation's first single-drug lethal injection died swiftly Tuesday, inaugurating an execution method some analysts consider more humane than the three-drug procedure used in California and 33 other states.
But the method used in Ohio is unlikely to gain traction in California, experts say, because of procedural hurdles and persistent concerns about how the drugs -- whatever their number -- are administered to the condemned.
This is significant news because California has the nation's largest death row and because its current lethal injection protocol has been in constitutional purgatory for more than three years.
Some recent related posts about Ohio's new execution method:
- Ohio adopting a new one-drug lethal injection protocol
- "Ohio inmate to get 1-drug, slower, execution"
- Reports on Ohio's success with one-drug lethal injection protocol
- A few early questions following Ohio's successful one-drug lethal injection execution
The latest (encouraging?) official data on incarceration nationAs reported in this AP piece, the Bureau of Justice Statistics has released its official tally of incarceration numbers. Here is an effective summary of what the new data show:
The U.S. prison population edged up slightly last year, though the number of total inmates dropped in 20 states, including New York, Georgia and Michigan.
Justice Department figures released Tuesday show the overall state and federal prison population stands at a record 1.6 million and is still rising, but the rate of growth is slowing as state authorities look for cheaper ways to mete out justice. If you add in those people in jails — where some are held while they await trial — the total number of people behind bars comes to 2.3 million....
The statistics are the latest evidence that the rapid growth of prisons seen in the 1990s has cooled significantly in this decade. The prison population grew less than 1 percent last year. The previous decade saw the inmate population grow by an annual average of more than 6 percent.
Ram Cnaan, a professor at the University of Pennsylvania's School of Social Policy and Practice, said the slowing trend shows politicians are confronting a painful truth about prisons. "They simply cost too much," said Cnaan. "If you can prevent opening a new prison, you can save lots of money."
Both liberals and conservatives are increasingly searching for alternative sentencing programs, like treatment or monitoring, he said. "It's not ideological, it's pragmatic," said Cnaan. "This is the first time that we have alliances on the right and left on this issue, and it's the money that has forced the issue."
The states with the largest increases in prison population were Pennsylvania, Florida and Arizona, whose one-year increases were all greater than the federal prison system, which grew by 1,662 inmates. Of the three states that lost the most prisoners in 2008, New York shed 2,273, Georgia 1,537 and Michigan 1,495.
Prisoners in 2008 is the official title of the new BJS publication, and it can be accessed at this link.
December 8, 2009
A few early questions following Ohio's successful one-drug lethal injection execution
As noted here, the state of Ohio today succeeded in completing an execution using a single-drug lethal injection protocol. Time will tell if this event proves to be a big turning point or just a blip in the dynamic story of the modern administration of capital punishment in the United States. But, before we have the benefit of historical hindsight, let me pose a few early post-execution questions:
1. Does this development prove the death penalty can be effectively improved or that it usually cannot? In the copious litigation over three-drug lethal injection protocols during the past decade, opponents of this protocol have often suggested the one-drug alternative adopted in Ohio. The fact that Ohio finally moved to this approach might provide support for the claim that some states are genuinely interested in improving their capital systems. But the fact that it took so long for even a single state to change course, and the fact that all other states still currently have the three-drug protocol in place, perhaps reveals that Ohio is an exception to the usual death penalty administration rule.
2. Does this development really please any who complained vociferously about the old three-drug protocol? If any of the strenuous opposition to three-drug protocols was really focused only on possible suffering by the condemned while being executed, these opponents should be going out to celebrate tonight. But I have long suspected that most (if not all) vocal opponents of three-drug lethal injection protocols are categorical opponents of the death penalty more generally, and thus I suspect there will be little celebration within this crowd tonight.
3. Will Ohio have to deal with any more litigation over its new lethal injection protocol? Ohio has roughly one execution scheduled for each of the next six months. I suspect that the condemned defendants scheduled to go next to the death chamber in Lucasville will have a hard time getting a stay based on a lethal injection challenge. But, then again, one should never discount what clever capital defense lawyers can achieve.
4. Will Ohio now be able to try to "re-execute" Romell Broom? Ironically, the troublesome veins of condemned inmate Romell Broom, which resulted in Ohio failing when trying its old execution protocol on him in September, deserve credit for forcing Ohio to adopt its new one-drug approach. It remains to be seen, however, if Ohio will get to "reward" Broom through another trip to the death chamber. I believe a hearing is scheduled tomorrow in federal court to consider Broom's claim that it is unconstitutional to try to execute him again now, and I really am chary to predict how this matter might get resolved.
Some related posts on Ohio lethal injection issues:
- Ohio considering new (and novel) method of lethal injection
- "Ohio GOP lawmakers: Execution process can be fixed"
- Ohio adopting a new one-drug lethal injection protocol
- How quickly will Ohio be able to get back to executions after adopting one-drug lethal injection protocol?
- Ohio death row defendant claiming new lethal injection protocol involves "human experimentation"
- Ohio news about execution efforts past and execution efforts future
- Will litigation over Ohio's new one-drug lethal injection protocol move fast or slow?
- Biros seeking federal stay to prevent Ohio's use of new one-drug lethal injection protocol
- Sixth Circuit judges duel over Ohio defendant's old lethal injection challenge
- "Ohio inmate to get 1-drug, slower, execution"
- Reports on Ohio's success with one-drug lethal injection protocol